COMMONWEALTH OF KENTUCKY PIKE CIRCUIT COURT DIVISION II CIVIL ACTION NO. 07-CI-01303 COMMONWEALTH OF KENTUCKY,ex rel. JACK CONWAY,ATTORNEY GENERAL PLAINTIFF v. DEFENDANTS PURDUE PHARMA,L.P., et al MOTION TO INTERVENE AND TO UNSEAL COURT RECORDS Movant, Boston Globe Life Sciences Media, LLC, d/b/a STAT ("STAT")I, by counsel, hereby respectfully moves to intervene in this action for the limited purpose of moving to unseal court records. In support of its motion, STAT states as follows. INTRODUCTION The Court should permit STAT to intervene, and the Court should unseal the court records. Among the sealed court records is the transcript of the deposition of Richard Sackler, the chair of the board of directors of Defendant Purdue Pharma, L.P.("Purdue"). Also sealed are an unknown number of additional court records. These are all court records to which the public has a constitutional right of access and a common law right of access. Yet, here, the parties tiled the documents under seal without attempting to carry the heavy burden required to overcome the right of public access to court records and without any of the other required procedures or f- indings necessary to seal court records. The Court should make the court records immediately available to the public. STAT is a national online health and life-sciences publication that focuses on science research and development, medicine, biotechnology, and political news related to science. FACTUAL AND PROCEDURAL BACKGROUND There can be no doubt that the public has a substantial and legitimate interest in this case. The Kentucky Attorney General filed this lawsuit in 2007 on behalf of the Commonwealth of Kentucky and its citizens. The case concerns the alleged illegal marketing of the drug OxyContin by Purdue and others. The Commonwealth alleged that Purdue marketed the drug deceptively which resulted in a drug addiction epidemic among Kentuckians, including hundreds of overdose deaths. The claimed damages were widespread and astronomical in both their human and economic impact upon the Commonwealth. After eight years of litigation, the Commonwealth settled with Purdue for an Agreed Judgment in the amount of $24 million. THE AGREED QUALIFIED PROTECTIVE ORDER. As the discovery process in this case was underway, on December 4, 2013 the Court entered a 33-page Agreed Qualified Protective Order submitted by the parties. The Agreed Qualified Protective Order allowed the parties unilaterally to designate discovery materials as "confidential" in order to restrict the other parties' use and dissemination of the materials. Under the Agreed Qualified Protective Order, the parties' designation of materials as "confidential" was supposed to be limited to certain narrowly defined categories of information: The designation "CONFIDENTIAL" shall be limited to documents, data, other tangible items, or information that any producing party, including any third party, in good faith, believes to contain: (a) research, development, proprietary or commercially sensitive or competitively sensitive documents, data, other tangible items, or information the disclosure of which could cause competitive or commercial injury to the producing party; (b) trade secrets as defined by KRS 365.880(4); (c) past or current company personnel or employee documents, data, other tangible items, or information;(d) personal or sensitive financial documents, data, or information;(e) documents, data, other tangible items, or information that should otherwise be subject to confidential treatment under CR 26.03(g) or that is otherwise protectable under applicable rules, statutes or common law;(f) material or information not appropriate for public disclosure because of personal privacy interests ("Sensitive Personal Information") or contractual rights of third parties (including but not limited to proprietary information purchased from third 2 parties); or (g) material or information which is subject to any Protective Order, sealing order or other order or ruling that prevents or limits the Designating Party from disclosing such document. (12/4/13 Agr. Qual. Prot. Ord., ¶ 5);(see also id. at ¶ 16)(requiring that a party "will make such designation only as to those documents, data or information that it in good faith believes is `CONFIDENTIAL' ..."). With respect to depositions, the Agreed Qualified Protective Order provided that a party could designate all, or portions, of a transcript as "confidential" within 30 days after the receipt of the final transcript. (Id. at lff 19.) The Agreed Qualified Protective Order required the deponent or other party making the designation to "list on a separate piece of paper the numbers of the pages of the deposition transcript" which contain confidential information and to "serve same on opposing counsel." (Id. at ¶ 19.) If no such designation was made within the 30-day period after receipt of the transcript, the transcript is presumed not to contain any "confidential" material. (Id. at 1119.) In addition to governing the parties' exchange of information in discovery, the Agreed Qualified Protective Order also provided that any documents or pleadings to be filed with the Court that contain information designated by a party as "confidential" were to be filed under seal. (Id. at ¶ 20.) Yet, the Agreed Qualified Protective Order was also clear that the parties' unilateral designation of material as "confidential" shall not be "construed in any way as a finding" that the material is properly designated as such. (Id. at ¶ 22.) Thus, the Court made no findings that any particular materials were properly designated as "confidential" or that any such materials should properly be sealed in the court record.(See id.) 3 IL SETTLEMENT OF THE LAWSUIT. On December 18, 2015 the parties executed a Settlement Agreement and General Release. (12/18/15 Settl. Agr., attached as Exhibit 1.) Among other things, the Settlement Agreement provided for the Court's entry of an Agreed Judgment requiring Purdue to pay the Commonwealth $24 million. (See id. at ¶ 13.) The Settlement Agreement provided for the Agreed Qualified Protective Order to remain in force and effect. (Id. at Ili 21.) However, neither the Settlement Agreement nor the Agreed Judgment adopting it specified that any particular court records should be sealed and kept secret from the public.(See id.) On December 22, 2015, the Court entered an Agreed Judgment approving and adopting the Settlement Agreement and General Release. (12/22/15 Agr. Judg., attached as Exhibit 2.) Among other things, the Agreed Judgment provided that the settlement funds "shall be placed in a restricted fund within the Commonwealth of Kentucky for the General Assembly to appropriate for the use of public health initiatives, educational or public safety campaigns, reimbursement or financing of health care services and infrastructure related to addiction prevention and treatment."(Id. at ¶ 8.) III. STAT'S REQUEST FOR RICHARD SACKLER'S DEPOSITION TRANSCRIPT. STAT is a subsidiary of Boston Globe Media Partners, LLC, which owns The Boston Globe newspaper and its related digital news publications, including BostonGlobe.com and Boston.com. STAT is devoted to high-quality journalism in the areas of science, medicine and health policy. (See STAT's website at www.statnews.com and www.statnews.com/about.) As the Court is aware, the Commonwealth's allegations that the marketing of OxyContin contributed to a pervasive drug addiction and crime problem are not unique to Kentucky. Both government action and litigation concerning the issues has occurred throughout the United 4 States. Thus, the facts surrounding Purdue's marketing of OxyContin and the ways in which the Commonwealth addressed those facts in this lawsuit are of significant local, national and international newsworthiness particularly in STAT's specialized fields of health policy and medicine. After the $24 million settlement was made public, on February 15, 2016, STAT Senior Enterprise Reporter David Armstrong made an open records request to the Attorney General's office for a copy of the transcript of the deposition of Purdue's hoard chair, Richard Sackler, taken in this lawsuit. On February 18, 2016, the Attorney General's office responded, denying Mr. Armstrong's request. (2/18/16 letters, attached collectively as Exhibit 3.) Writing for the Attorney General's office, Assistant Attorney General S. Travis Mayo stated that the Agreed Qualified Protective Order remained in full force and effect and that it prohibits the disclosure of documents designated by the parties as containing "confidential" information, including Mr. Sackler's deposition transcript. (See id. at 2-3.) The Attorney General did not invoke any of the statutory exceptions to disclosure set forth in the Open Records Act, KRS 61.878(1). (See id.) Indeed, none of the Open Records Act exceptions would apply to a deposition transcript in the possession of a public agency. In other Open Records Act decisions, the Attorney General has held that "fulnless the court has ordered the deposition to be sealed it may be inspected by the public after it has been filed."()AG 88-48. In this case, the Attorney General cited several Open Records Act decisions which hold that a court order sealing a deposition transcript makes the transcript unavailable for public inspection under the Open Records Act and, instead, requires relief from the courts out of deference to the judicial process. (See Exh. 3, at p. 3)(citing, inter alia, 12-ORD-219 & 05-ORD-066). 5 Here, there is no order of the Court sealing the transcript of Mr. Sackler's deposition or providing any reasons why the transcript should be kept secret from the public. Rather, the Purdue defendants appear to have sealed the transcript by unilaterally designating it as "confidential" pursuant to the Agreed Qualified Protective Order. Mr. Mayo wrote, Pursuant to the [Agreed Qualified Protective] Order, the parties filed numerous motions and exhibits with the Court under seal. The Commonwealth filed multiple motions under seal that referenced and quoted portions of the deposition of Richard Sackler. Further the Purdue defendants designated many portions of the deposition as "Confidential." Thus, the release of the deposition referenced and quoted in motions filed under seal, would violate the order of the Pike County Circuit Court and subject the Office of the Attorney General to potential sanctions. (Id. at 3.) In a supplemental response, Mr. Mayo clarified that the entire deposition of Mr. Sackler was filed under seal — not merely the portions allegedly designated as "confidential." (See second 2/18/16 letter, Exh. 3.) Given STAT's (and the public's) inability to obtain sealed documents from the court record, it is not clear how much, if any, of Mr. Sackler's deposition transcript was actually designated by Purdue as "confidential" under paragraph 19 the Agreed Qualified Protective Order. It is also unclear how much of the court record in this case was submitted by the parties under seal. The Attorney General's letter simply claims that "the parties filed numerous motions and exhibits with the Court under seal," all apparently without any hearing, findings, or order by the Court addressing any reasons for sealing such court records. (See first 2/18/16 letter, Exh. 3, p. 3.) Equally unclear is the specific nature of the Commonwealth's various sealed motions, how significant a role Mr. Sackler's deposition testimony played in such motions, or how such sealed motions were resolved by the Court. However, it is clear that Mr. Sackler's deposition was one of a very few depositions, perhaps the only deposition, taken in this case before the parties reached a settlement resulting in the $24 million Agreed Judgment. 6 ARGUMENT I. STAT IS ENTITLED TO INTERVENE. STAT has both the standing and the right to intervene in this case in order to assert its right of access to court records and to gather news concerning this case: The First Amendment guarantee of freedom of the press and the Sixth Amendment guarantee of public trial in criminal cases, as presently interpreted and applied in judicial decisions, have placed the news media in a unique position in demanding access to court proceedings wherein the media is permitted to intervene and demand access even though a nonparty, and, if denied intervention or refused a hearing, is permitted to attack the decision in the appellate court by writ of prohibition or mandamus.... In short, to preserve higher values, the news media have been made an exception to the usual rules regarding standing to intervene and standing to seek mandamus where access is denied. Courier-Journal & Louisville Times Co. v. Peers, 747 S.W.2d 125, 127-28 (Ky. 1988)(internal punctuation and citations omitted). In addition, when a member of the news media seeks to protect its First Amendment right of newsgathering, a hearing must be held. It is the "fundamental right of the news media to a hearing to decide whether the hearing should be closed or the record sealed from access to the public and the media." Id. at 129; see also, e., Riley v. Gibson, 338 S.W.3d 230, 234 (Ky. 2011); Central Ky. News-Journal v. George, 306 S.W.3d 41, 44-45 (Ky. 2010). Denial of access to court records is an immediate and irreparable infringement on STAT's and the public's rights of access, irrespective of whether the underlying case has been resolved by settlement. See Peers, 747 S.W.2d at 129; CBS, Inc. v. Davis, 510 U.S. 1315 (1994); Central Ky. News-Journal, 306 S.W.3d 41. Therefore, the Court should permit STAT to intervene for the purpose of asserting its, and the public's, right of access to court records. 7 II. THE PUBLIC AND STAT HAVE A CONSTITUTIONAL AND COMMON LAW RIGHT OF ACCESS TO THE COURT RECORDS IN THIS CASE. The public and STAT have a fundamental constitutional and common law right to access court records and proceedings, and Kentucky has a long tradition of ensuring free access to its court proceedings and court records. See, e.g., Peers, 747 S.W.2d at 127-28. In Fiorella v. Paxton Media Group, L,LC, 424 S.W.3d 433, 439 (Ky. App. 2014), the Court of Appeals held that the "presumption of openness" applies to "everything filed with the courts." In 1968, Kentucky's highest court recognized the vital importance of open court proceedings. The principle that justice cannot survive behind walls of silence is so deeply imbedded in our Anglo-American judicial system as to give our people in today's modern society a deep distrust of secret trials.... One of the strongest demands of a democratic system is that the public should know what goes on in their courts. This demand can only be met by permitting them to be present in person and by permitting the press who have the facilities to properly inform them to be present upon their behalf... . Johnson v. Simpson, 433 S.W.2d 644,646(Ky. 1968). Applying the "open courts" provision of Kentucky's Constitution, Ky. Const. § 14, the Court of Appeals has held that "Mlle precept that courts shall be open embodies not only the idea that the courts shall be available to all citizens who seek redress for wrongs but that the courts shall be public, open, no hiding place about them." Ashland Publishing Co. v. Asbury, 612 S.W.2d 749, 752 (Ky. App. 1980) (citations and internal punctuation omitted). The United States Supreme Court has also held that the First Amendment mandates a strong presumption of open judicial proceedings, in part because lolpenness ... enhances both the basic fairness of the ... trial and the appearance of fairness so essential to the public confidence in the system." Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569-71 (1980). There is no question that the constitutional and common law right of access to court proceedings extends to court records, including the records of cases that have been concluded. 8 The Kentucky Supreme Court has held that "'title value of investigative reporting as a tool to discovery of matters of public importance is directly proportional to the speed of access. This is true when investigating court records after the case is closed as well as with a case in progress." Peers, 747 S.W.2d at 129. The Peers Court held: We recognize that the government belongs to the people, that its activities are subject to public scrutiny, and that the news media is a primary source of protecting the right of public access. This right includes the public's "right to inspect and copy public records and documents, including judicial records and documents."... Basic principles have emerged to guide judicial discretion respecting public access to judicial proceedings. These principles apply as well to the determination of whether to permit access to information contained in court documents because court records often provide important, sometimes the only, bases or explanations for a court's decision. 747 S.W.2d at 128 (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597(1978) and Brown & Williamson Tobacco Corp. v. F.T.C., 710 F.2d 1165, 1177 (6th Cir. 1983))(emphasis added). The right of access to court records includes the public's right of access to Mr. Sackler's deposition transcript which has been filed in the court record as well as the motions and memoranda that concern Mr. Sackler's deposition. Time and again Kentucky's appellate courts have held that the public's right of access outweighs litigants' interest in maintaining the secrecy of depositions. The Supreme Court's landmark decision in Peers dealt with the right of public access to "pleadings, depositions and interrogatories in the file." 747 S.W.2d at 129-130. Likewise, the Court of Appeals decision in Fiorella dealt specifically with a deposition transcript, parts of which the parties filed under seal. See 424 S.W.3d at 438. In fact, Kentucky law is clear that the right of public access applies to all of the records in the court file of this case. The Fiorella court held that the "presumption of openness" applies to "everything filed with the courts," including the deposition transcript in that case, which was 9 required by CR 30.06 to be filed in the court record. Id. 424 S.W.3d at 438 n.4, 439 (emphasis added). The Court of Appeals has also held that "Iblefore sealing any part of a trial court record, a court must first convene a hearing at which the party asking that the record be sealed bears the burden of proving sealing the record is necessary." Cline v. Spectrum Care Acad., Inc., 316 S.W.3d 320, 325 (Ky. App. 2010)(emphasis added). Here, the public's right of access is even stronger in light of the fact that the Commonwealth filed motions and memoranda in the court record dealing with Mr. Sackler's deposition as well as other matters. In the absence of a proper protective order finding good cause for the sealing of a specific court record, "the presumption of openness is, effectively, absolute." Fiorella, 424 S.W.3d at 440. Yet, even where there is some level of"good cause" that favors the closure of a court record, the public's interest in openness must be weighed against the interest in closure. Kentucky courts utilize a "sliding scale" approach to determine the weight given to the public interest in openness. "[T]he weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the ... courts." Fiorella, 424 S.W.3d at 440 (citing U.S. v. Amodeo, 71 F.3d 1044, 1049 (2nd Cir. 1995) and Roman Catholic Diocese of Lexington v. Noble, 92 S.W.3d 724 (Ky. 2002)). "Rifle weight of the presumption favoring public availability of discovery used to support motions, such as motions for summary judgment, is of the highest." Fiorella, 424 S.W.3d at 440 (internal punctuation omitted) (citing Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2nd Cir. 2006)). Moreover, in this case the deposition of Mr. Sackler plays a double role in the exercise of the Court's judicial power. First, as with any other deposition, it is a basis for the Court's exercise ofjudicial power in the numerous summary judgment motions pending before the Court 10 at the time of the parties' $24 million settlement. See Fiorella, 424 S.W.3d at 441 ("CR 56.03 expressly includes depositions among those matters which are proper for a trial court to consider in ruling on a summary judgment motion."). Second, according to the Commonwealth, "the parties filed numerous motions and exhibits with the Court under seal," including the Commonwealth's "multiple motions under seal that referenced and quoted portions of the deposition of Richard Sackler." (2/18/16 OAG letter, Exh. 3, at p. 3.) Thus, both the deposition and the other sealed motions and exhibits played an additional and significant role in the Court's exercise ofjudicial power in this case, thereby heightening the already-substantial public interest in openness as to both the deposition and the sealed motions and exhibits. See Fiorella, 424 S.W.3d at 440. The fact that this case was settled does not detract from the public interest in disclosure of the court records, including the deposition transcript. "[T]he Supreme Court has instructed us that when a settlement agreement involves the expenditure of public funds, it `weigh[s] in favor of requiring the record to be open to public inspection.'" Id. at 441 (quoting Peers, 747 S.W.2d at 130). There is no question that disclosure of information relating to a public agency's civil settlement is of the utmost public interest. Kentucky's courts have consistently ruled in favor of public disclosure of settlement agreements as well as the underlying records in cases that resulted in a public agency's settlement. See, e.g., Peers, supra (access to court records, including depositions, in case settled by county); Fiorella, supra (granting access to deposition in case settled by state community college system); see also Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader, 941 S.W.2d 469, 472-473 (Ky. 1997) ("settlement of litigation between private citizens and a governmental entity is a matter of legitimate public concern which the public is entitled to scrutinize"); Central Ky. News-Journal, 306 S.W.3d at 45 (same); 11 Lawson v. Office of the AG, 415 S.W.3d 59, 70-71 (Ky. 2013)(requiring public disclosure of recorded statement given by party who paid to settle civil claim brought by Attorney General); Courier Journal & Louisville Times Co. v. McDonald, 524 S.W.2d 633, 635 (Ky. 1974) (settlement of suit against city "is a matter with which the public has a substantial concern"). Here, the interest in disclosure is even stronger than the ordinary settlements in other cases because the settlement in this case was specifically incorporated into an Agreed Judgment entered by the Court. Further, the settlement sum of $24 million became public money subject to control by both the Court and the General Assembly. (See 12/22/15 Agreed Judgment, ¶ 8.) Both of those factors add considerable weight in favor of the public's interest in disclosure of all court records in the case. The public has a strong interest in the disclosure of the court records that led to, or could have contributed to, the settlement. See, e.g., Fiorella, 424 S.W.3d at 441 (unsealing deposition testimony where there was a possibility that the testimony contributed to public agency's decision to settle). STAT and the public have a constitutional and common law right of access to the court records in this case, including the transcript of Mr. Sackler's deposition, the related motions that concern the deposition, and the other numerous motions and exhibits filed by the parties under seal. That right of access is far superior to Purdue's currently unknown interest in maintaining the secrecy of information relating to this case. Accordingly, the Court should permit STAT to intervene in this case and should unseal the deposition of Mr. Sackler, the sealed motions and memoranda that concern the deposition, and all other court records submitted by the parties under seal. 12 III. THE RECORDS IN THIS CASE WERE IMPROPERLY SEALED AND SHOULD BE MADE AVAILABLE TO THE PUBLIC. The public's constitutional and common law right of access to court records has clearly been violated in this case. There is no order of the Court supporting sealing Mr. Sackler's deposition transcript or sealing the motions related to the deposition or other matters. Nor is there any suggestion that any of the other procedural safeguards required before sealing court records was undertaken prior to the closure of the records. The Kentucky Supreme Court has mandated a series of requirements that must be met before the closure of court records. See Lexington Herald-Leader Co., Inc. v. Meigs, 660 S.W.2d 658 (Ky. 1983). First, there must be a hearing. Before closure, the "trial judge should consider the utility of other reasonable methods available to protect the rights of the [party] short of closure." Id. If the Court decides that closure is essential to protect the interest alleged by the party seeking closure, the Court must make specific written findings as to why closure is necessary. Id. Second, the party "who seeks closure has the burden of persuasion. The burden of proof is on those who would infringe the First Amendment right of access, not on those who assert it." Id. (citing Nebraska Press Assn. v. Stuart, 427 U.S. 539, 558-59, 569-70 (1976)). Third, the burden which must be met is a stringent one in three parts. The party seeking closure must: (a) specifically identify a fundamental right that so outweighs the public's constitutional and common law rights of access that "in no other way can justice be served," Lexington Herald-Leader Co., Inc. v. Tackett, 601 S.W.2d 905, 906 (1980); (b)"show that the asserted right or interest probably cannot be adequately protected by less restrictive alternatives to closure," Meigs, 660 S.W.2d at 663; and (c)"show that the right or interest he seeks to protect...will be protected by a closed proceeding." Id. 13 In Cline, 316 S.W.3d at 325, the Court of Appeals iterated the holding of Meigs, supra, and held that Iblefore sealing any part of a trial court record, a court must first convene a hearing at which the party asking that the record be sealed bears the burden of proving sealing the record is necessary." Further, the court in Cline held that the trial court and the party seeking closure must exhaust all less onerous alternatives to closure, and the trial court must make written findings of fact and conclusions of law either granting or denying the motion to seal the record or specified parts thereof. Id. at 325-326. Under the First Amendment, the United States Supreme Court has imposed similar requirements before the public can be denied access to court proceedings: The presumption may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 10-11 (1986); see also Richmond Newspapers., 448 U.S. at 569-71. Here, rather than follow the required process before purporting to seal the Sackler deposition transcript and other motions and exhibits, the parties relied upon the Agreed Qualified Protective Order. That reliance is misplaced. While the Agreed Qualified Protective Order may be an appropriate device to govern the parties' exchange of discovery material among themselves, it cannot be a substitute for the Court's obligation to safeguard the right of public access to records filed with the Court. The decision in Fiorella made clear that the parties' agreement to seal a deposition in the court record, without the required hearing and the required specific written findings by the court, is ineffectual. See Fiorella, 424 S.W.3d at 435. 14 There is no indication that, in entering the Agreed Qualified Protective Order, the Court conducted the required hearing, made the required consideration of alternatives to closure, or made the required written findings to justify closure. See Meigs, 660 S.W.2d 658. Nothing in the Agreed Qualified Protective Order deals specifically with the deposition of Mr. Sackler or any other specific records. Nor is there anything in the Agreed Qualified Protective Order that could possibly be construed as a finding of fact supporting any purported reasons why the deposition and other court records should be kept secret. See id. In fact, the Agreed Qualified Protective Order provides exactly the opposite. It expressly and unequivocally states that "In-lothing in this Qualified Protective Order shall be construed in any way as a finding that documents, data or information designated as 'CONFIDENTIAL' actually is `CONFIDENTIAL' ..."(12/4/13 Agr. Qual. Prot. Ord., 11 22.) Neither the Court's entry of the Agreed Qualified Protective Order nor a party's unilateral designation of material as "confidential" under that Order is a proper basis for sealing documents in the court record. It is the Court's function — and not the parties' • to determine, under the appropriate standards applying the strong presumption in favor of public access, whether records in the court file may be sealed. Fiorella, 424 S.W.3d at 438-439. The United States Court of Appeals for the Sixth Circuit addressed this precise issue in Procter & Gamble v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996).2 As in this case, the trial court in Procter & Gamble entered a broad protective order dealing with discovery materials and allowing the parties to designate records as confidential which, in turn, would determine what records would be filed under seal. The Sixth Circuit held, 2 The Kentucky Court of Appeals cited Procter & Gamble with approval as to a related point in James v. Hines, 63 S.W.3d 602,607(Ky. App. 1998). 15 While District Courts have the discretion to issue protective orders, that discretion is limited by the careful dictates of Fed. R. Civ. P. 26 and is circumscribed by a long-established legal tradition which values public access to court proceedings. Rule 26(c) allows the sealing of court papers only "for good cause shown" to the court that the particular documents justify court-imposed secrecy. In this case, the parties were allowed to adjudicate their own case based upon their own self-interest. This is a violation not only of Rule 26(c) but of the principles so painstakingly discussed in Brown & Williamson? The District Court cannot abdicate its responsibility to oversee the discovery process and to determine whether filings should be made available to the public. It certainly should not turn this function over to the parties, as it did here, allowing them to modify the terms of a court order without even seeking the consent of the court. The protective order in this case allows the parties to control public access to court papers, and it should be vacated or substantially changed. Procter & Gamble, 78 F.3d at 227 (internal citations and quotation marks omitted). The Kentucky Court of Appeals adopted this same analysis in its holding in Fiorella, 424 S.W.3d at 439, when it rejected the parties' attempt to reach an agreement as to what documents would be filed under seal. The Court held that, without a proper court order with written findings to justify sealing the specific court records, the parties' attempt to treat the records as "sealed" amounted to "a mere illusion." Fiorella, 424 S.W.3d at 439. Here, abiding that "illusion" of closure constitutes an irreparable deprivation of STAT's and the public's right of access to court records. See Peers, 747 S.W.2d at 129. Accordingly, the Court should unseal the improperly sealed court records in this case and should make them immediately available to the public. Further, pursuant to RPCC 8(b), and pursuant the numerous decisions holding that news media organizations are entitled to a hearing before court records are closed, STAT respectfully requests the Court to assign this Motion for hearing at which Purdue, or others seeking closure of the court records, must be held to the appropriate burden as to each court record that they might seek to seal. See, e.g., Cline, 316 S.W.3d at 325 ("Before sealing any part of a trial court record, 3 Brown & Williamson Tobacco Corp. v. FTC,710 F.2d 1165, 1177 (6th Cir. 1983). 16 a court must first convene a hearing at which the party asking that the record be sealed bears the burden of proving sealing the record is necessary."). CONCLUSION For all the reasons stated herein, STAT respectfully requests that the Court grant its motion to intervene for purposes of asserting its constitutional and common law rights to access court records. Further, the Court should issue an order making the deposition of Richard Sackler and all other motions, exhibits and material in the court file immediately available to the public. Respectfully submitted, ze, 1 ,60: 4 Jon L. Fleis f aker Jeremy S. RIgers DINSMORE & SHOHL LLP 101 South Fifth Street 2500 National City Tower Louisville, Kentucky 40202 Telephone:(502)540-2300 Facsimile: (502) 585-2207 Counsel,* Boston Globe Lift Sciences Media, LLC, d/b/a STAT 17 CERTIFICATE OF SERVICE It is hereby certified that a true and correct copy of the foregoing was served by electronic mail on this the )j day of March, 2016, upon the following: Robyn Bender Mitchel Denham Michael E. Brooks C. David Johnstone LeeAnne Applegate S. Travis Mayo Wesley Duke Donald L. Smith, Jr. Tyler S. Thompson Anthony P. Ellis Robyn.Bender@ag.ky.gov mitchel.denham@ag.ky.gov Michael.Brooks@ag.ky.gov david.johnstone@ag.ky.gov Leeanne.Applegate@ag.ky.gov travis.mayo@ag.ky.gov wesley.duke g,ag.ky.gov Donald.smith@uky.edu tthompson@telawpIc.com AEllis@kytrial.com Counsellor Plaintiff Commonwealth ofKentucky Daniel E. Danford Pamela T. May Chilton Davis Varner Stephen B. Devereaux Eric M. Wachter Bobby Woo ddanford(c-b,stites.com ptmay@pammaylaw.com cvarner@kslaw.com sdevereaux@kslaw.com ewachter@kslaw.corn bwoo@kslaw.com Counselfor Purdue Defendants Susan J. Pope Jacinth. F. Porter Bayard V. Collier spope@fbtlaw.com jporter@fbtlaw.com bcollier@bsgeast.com Counselfor Abbott Defendants 18 EXHIBIT 1 2015-12-21 21:50 Floyd Circuit Judge 1606 » PIKE CO CIR CLK P 2/23 COMMONWEALTH OF KENTUCKY PIKE CIRCUIT COURT DIVISION II CIVIL ACTION NO,07-C1-01303 COMMONWEALTH OF KENTUCKY,ex rel, JACK CONWAY,ATTORNEY GENERAL PLAINTIFF v. PURDUE PHARMA L.P., PURDUE PHARMA,INC., THE PURDUE FREDERICK COMPANY,INC., d/b/a THE PURDUE FREDERICK COMPANY, PURDUE PHARMACEUTICALS,L,P., THE P.P. LABORATORIES,INC., ABBOTT LABORATORIES,and ABBOTT LABORATORIES,INC. DEFENDANTS SETTLEMENT AGREEMENT AND GENERAL RV:LEASE This Settlement Agreement and General Release(the "Agreement")is made this 18th day ofDecember,2015, by and between the Plaintiff, Commonwealth of Kentucky, acting by and through Attorney General Jack Conway(hereinafter the "Commonwealth"),and Defendants Purdue Pharma L.P., Purdue Pharma Inc., The Purdue Frederick Company,Inc. d/b/a The Purdue Frederick Company,Purdue Pharmaceuticals L,P., The P,F, Laboratories, Inc.(hereinafter collectively "Purdue),in the case styled Commonwealth ofKentucky, ex rel. Jack Conway, Attorney General, and Pike County, Kentucky v. Purdue Pharma L.P., et al„ Civil Action No, 07-CI-01303 (Pike Circuit Court), in order to settle all claims that were or could have been brought in the Action against Purdue,or Abbott Laboratories and Abbott Laboratories,Inc. (hereinafter collectively "Abbott")(Purdue and Abbott are hereinafter collectively "Defendants"),in this action, or any other action regarding the Covered Conduct, and consent to the entry ofan Agreed Judgment with Stipulation of Dismissal with Prejudice("Agreed Judgment"),for the purposes ofsettlement only, without the Agreed Judgment constituting 2015-12-21 21:50 Floyd Circuit Judge 1606 >> PIKE CO CIR CLK P 3/23 evidence against or any admission by any party,and without trial ofany issue offact or law, IN CONSIDERATION of thc mutual promises, covenants and agreements hereafter sct forth and the exchange of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, thc parties agree as follows: L 1. DEFINMONS The following definitions shall be used in construing this Agreement. Terms used in the singular shall include the plural and vice versa. A. The "Action" means the proceeding pending in the Pikc Circuit Court, Commonwealth of Kentucky entitled, Commonwealth of Kentucky, ex rel. Jack Conway, Attorney General, and Pike County, Kentucky v. Purdue Pharma L.P., et al., Civil Action No. 07-CI-01303 (Pike Circuit Court). B. "Affiliated Company" ofPurdue or Abbott means any person,firm, trust, partnership, corporation, company or other entity or combination thereof, which directly or indirectly controls or is controlled by or is under common control with Purdue or Abbott, respectively. The terms "control" and "controlled" means ownership of fifty percent(50%)or morc,including ownership by one or more trusts with substantially the same beneficial interests, of the voting or equity rights ofsuch person, firm, trust, partnership, corporation, company or other entity or combination thereof or thc power to direct the management ofsuch person,firm, trust, partnership, corporation,company or other entity or combination thereof. C. The term "Releasers" refers to the Commonwealth of Kentucky, Jack Conway, Attorney General, and his successors, the named Plaintiff in the Action, along with any and all people purporting to act on behalf of the Commonwealth of Kentucky in an official capacity as a representative of the Commonwealth, including the Commonwealth's officials, officers, employees, agents, attorneys, legal representatives, and any and all of its political subdivisions. Releasers shall further refer to any and all of the Commonwealth's counties, cabinets, administrative bodies, boards, bureaus, offices, agencies, divisions, departments, government bodies, and conunissions; and any predecessors, successors, heirs, executors, trustees, administrators, and assigns of the foregoing. D. The tcrrn "Roleasecs" means:(i) Purdue Pharma L.P.,Purdue Pharma Inc., The Purdue Frederick Company,Inc, d/b/a The Purdue Frederick Company,Purdue Pharmaceuticals L.P., The P.F. Laboratories,Inc., and all Affiliated Companies of the foregoing;(ii) along with their successors, assigns, subsidiaries, and trustees and/or beneficiaries oftrusts which have an interest in thc above referenced 2 2015-12-21 21:50 Floyd Circuit Judge 1606 >> PIKE CO CIR CLK P 4/23 companies,and/or any oftheir current, post or future owners, directors, officers, employees, consultants, suppliers, distributors, attorneys, outside counsel, insurers, accountants, direct and indirect shareholders, partners, members, or agents as relates to the Covered Conduct;(iii) Abbott Laboratories and Abbott Laboratories, the. and all Affiliated Companies ofthe foregoing;(iv) along with their successors, assigns, subsidiaries, affiliates, and trustees and/or beneficiaries of trusts which have an interest in the above referenced companies, and/or any current, past or Altura owners, directors, officers, employees, consultants, suppliers, distributors, attorneys, outside counsel, insurers, accountants, direct and indirect shareholders, partners, members, or agents as relates to the Covered Conduct, E. "Complaint" means the First Amended Complaint or the Complaint in the Action. F. "Covered Conduct" shall mean all conduct whenever or wherever occurring, whether inside or outside ofthe Commonwealth ofKentucky, relating to any Purdue Opioid,and including but not limited to all conduct,including but not limited to conduct relating to and/or arising from the purchase, use, misuse, abuse, theft, prescription, marketing, manufacture, distribution, sale, promotion, copromotion, research, design, development,clinical studies, pediatric studios, formulation, labeling, approval and/or ingestion of any Purdue Opioid,and also including but not limited to the allegations contained in this Action, Covered Conduct shall also include any action by Releasees relating to the treatment of pain, including but not limited to the appropriateness of using Purdue Opioids, and actions or inactions in connection with prescribers, kcy opinion leaders, researchers, third party organizations that related to promulgating materials or guidelines concerning any aspect ofthe treatment of pain or dissemination ofnonbrended content in any format up to the effective date ofthis Agreement, G. "Released Claims" means any and all claims, demands, actions, suits, debts, sums of money,causes ofaction, controversies, agreements, promises, damages whenever incurred, and liabilities ofany nature whatsoever, including costs, expenses,fines, penalties, injunctive relief, reimbursement,restitution, equitable remedies, punitive and exemplary damages,interest, and attorneys' fees, known or unknown,suspected or unsuspected, in law or equity, civil or criminal, that Releasors over had, now have, or hereafier can, shall, or may have, directly, indirectly, representatively, derivatively, or in any capacity, including in its pouts patriac capacity, arising out of Covered Conduct by any ofthc Rcicasecs, whether alleged or not by the Commonwealth in this action or any other action ofany kind whether or not relating to the subject matter ofthis action. The Released Claims Include all claims arising out ofor relating to the Covered Conduct and/or any claims that were or could have been alleged in the Action, whether or not the underlying facts wcrc known to the Commonwealth. 3 2015-12-21 21:50 Floyd Circuit Judge H. "Purdue Opioid" means:(i) OxyConfine, MS Confine, Butranse,Dilaudide, Palladonee, Ryzolte, Hysingla®, or Tarp,iniqe;(ii) any generic or authorized generic versions ofthe foregoing medications, which generic versions are developed, marketed, promoted, designed,distributed, or sold by Purdue; or (iii) immediate release oxycodone hydrochloride, and immediate release combinations ofoxycodone hydroeholoride and acetaminophen developed, marketed, promoted, designed, distributed, or sold by Purdue. II. 2. 1606 » PIKE CO CIR CLK P 5/23 GENERAL AGREED TERMS The terms of this Agreement shall be governed by the laws of the Commonwealth of Kentucky, 3. The parties shall attach this Agreement to an Agreed Judgment and Stipulation of Dismissal with Prejudice ("hereinafter "Agreed Judgment")for entry by the Pike Circuit Court, and agree that the terms ofthis Agreement and entry of an Agreed Judgment is in the public interest and reflects a negotiated agreement between the Commonwealth and Purdue. 4, The Commonwealth and Purdue have agreed to resolve the issues raised by and related to the Action, or in any present or future action or proceeding ofany kind whatsoever, civil, criminal,or otherwise, before any state, federal, county or other court, administrative agency, regulatory body, or any other body or authority present, by entering into this Agreement. This Agreement, the Agreed Judgment and the negotiations of each between the parties, and all ofthe terms herein, constitute compromises and offers to compromise covered by Kentucky Rule ofEvidence 408 and any similar, comparable, or equivalent law,rule, or statute under federal law or the law of another state. 5. Purdue is entering into this Agreement solely for the purpose ofsettlement. Purdue expressly denies liability, and nothing contained herein may be taken as or construed to be an admission of liability by Purdue for any violation of any civil or criminal statute, 4 2015-12-21 21:50 Floyd Circi,it Judge 1606 » PIKE CO CIR CLK P 6/23 law,rule, or regulation, or of any cause ofaction raised in the Action. This Agreement and the Agreed Judgment may not be used as evidence of any violation, misconduct, liability, fault, or wrongdoing, or of the truth ofany ofthe claims or allegations contained in any complaint, motion, pleading, or filing, whether in this Action or in any present or future action or proceeding ofany kind whatsoever, civil, criminal, or otherwise, before any state, federal, county or other court, administrative agency,regulatory body, or any other body or authority present. 6. This Agreement and the Agreed Judgment may be pleaded as a full and complete defense to any action, suit, Investigation,or any other proceeding that has been or may be filed, instituted, prosecuted, or attempted with respect to any of the Released Claims, and may be filed, offered, received into evidence, and otherwise used by Defendants for such defense. 7. No part of this Agreement or Agreed Judgment shall create a cause ofaction or confer any right to any third-party for violation ofany federal, state, or local statute to enforce the terms ofthis Agreement or Agreed Judgment, or for any other purpose whatsoever, except that either the Defendants or the Commonwealth may file an action to enforce the terms of this Agreement or Agreed Judgment. Subject to the provisions in paragraph 6, it is the intent of the Commonwealth and Purdue that this Agreement and the Agreed Judgment not be admissible in other cases or binding on the Defendants in any respect other than in connection with the enforcement ofthis Agreement or Agreed Judgment. III. 8, RELEASE PROVISIONS The Releasors and Purdue have agreed to resolve the issues that were raised or could have been raised in the Action or any other action regarding the Covered Conduct by 5 2015-12-21 21:50 Floyd CirciPit Judge 1606 » PIKE CO CIR CLK P 7/23 entering into this Agreement and the Agreed Judgment. 9. By execution of this Agreement, the Releasers release and forever discharge, to the fullest extent permitted by law, the Releasers from all Released Claims, and expressly waive all claims, causes of action or assertions which arise from the Covered Conduct prior to the date of this Agreement. The Releasers expressly waive and fully, finally, and forever settle and release any known or unknown,suspected or unsuspected, contingent or non-contingent Released Claims without regard to the subsequent discovery or existence of different or additional facts, The Releasers covenant and agree that they shall not hereafter initiate any proceeding or seek to establish liability against any ofthe Releasees based,in whole or in part, on any ofthe Released Claims and/or based on or relating to Covered Conduct prior to the date of this Agreement. 10. Thc Office of the Attorney General of Kentucky represents and warrants as a material term of the settlement that it has the authority under Kentucky law to bind, and has in fact bound,the Commonwealth and each and every of the Releasers, including without limitation each ofthe counties and other political subdivisions of the Commonwealth and any other Releaser, to the terms of the settlement by virtue of his signature hereto, Thc Commonwealth hereby binds each of the counties and other political subdivisions ofthe Commonwealth,and any other Rcicasor, to the terms of this Agreement and the Agreed Judgment 11. Nothing in this Agreement or Agreed Judgment is intended to alter the terms of a release in any previously executed settlement, release. or agreed judgment. 12. Nothing in this Agreement or Agreed Judgment is Wended to alter the terms ofthe May 8,2007 Consent Judgment entered into by the Franklin Circuit Court, Division I, in Case 6 2015-12-21 21:50 Floyd Circwit Judge 1606 » PIKE CO CIR CLK P 8/23 No.07-C1-00740,styled In the Matter ofPurdue Pharma LP., et al, and this Order shall not impact in any way Defendants' arguments that the Consent Judgment bars claims under resjudicata or release, Purdue and the Commonwealth agrco that the provisions set forth in paragraphs 2 through 24 ofthat Consent Judgment shall remain in effect pursuant to the terms ofthat Consent Judgment, but any ofthe foregoing paragraphs that contain sunset provisions shall remain in effect until thc =tier ofeither December 31, 2023 or three months after Purdue ceases promotion of OxyContin through sales representatives. 1v. 13. SETTLEMENT PAYMENT Following entry ofthe Agreed Judgment in the form agreed to by Purdue and the Commonwealth,and pursuant to wire instructions provided by thc Attorney Oeneral, Purdue shall pay thc Commonwealth a total amount of twentr.four million dollars ($24,000,000,00), payable in nine installments as follows. A, The first installment oftwelve million dollars($12,000,000,00) shall bo paid within 30 days ofthe entry of the Agreed Judgment and shall consist ofa payment of:(i) one million, five hundred thousand dollars($1,500,000,00)as reimbursement and restitution for payments made through state Medicaid and other state medical funding;(ii) nine million,five hundred thousand dollars ($9,500,000,00)to pay for expenses incurred by the Commonwealth ofKentucky and any of its agencies; and (iii)the balance in the amount ofone million dollars ($1,000,000.00)as an additional payment to the Commonwealth of Kentucky; B. The second through ninth installments shall each equal one million, five hundred thousand dollars($1,500.000,00) to pay for expenses incurred or to be incurred by 7 2015-12-21 21:50 Floyd Circuit Judge 1606 » PIKE CO CIR CLK P 9/23 the Commonwealth of Kentucky and any of its agencies. 'Me total payments of the second through ninth installments shall equal twelve million dollars ($12,000,000,00), Each ofthese installments shall be paid within 30.days oftho first through eighth anniversaries of the entry of the Agreed Judgment 14. The Defendants shall not be otherwise. or additionally liable for any oftho Commonwealth's and/or any other Releasor's past, present or future expenses related to this Action,including but not limited to tbc Commonwealth's litigation expenses ofthis Action,including without limitation attorney's fees, court fees, expert witness and consultant fees and expenses, and expenses associated with discovory, motion practice, hoarings, and/or appoals. 15. In the event that the Commonwealth and/or any of its counties or other political subdivisions, or any other Releasor, files or initiates any claim, litigation, or other proceeding against any ofthe Releasees on behalfofthe Commonwealth or any of its counties or other political subdivisions in any forum seeking any form of roliofrelating to tho Covered Conduct released herein based upon any legal, equitable, common law, statutory, constitutional, administrative,or other basis, including but not limited to claims that wero or could have been raised against any oftho Roloasoos in the Action with regard to Purduo Opioids, the parties agree that: (a)the Releasees may use or Ale this Agreement and/or the Agreed Judgment as a total bar to such claim, litigation, or other proceeding, and Roleasors and the Office ofthe Attorney General will not contest such use or tiling, or claim that the Agreement or Agroed Judgment is not legally valid or enforceable;(b)any Rcloasoo named in tho claim, litigation, or other proceeding may notify the Commonwealth oftho claim, litigation, or other proceeding and shall provido 8 2015-12-21 21:50 Floyd Circuit Judge 1606 » PIKE CO CIR CLK P 10/23 the Commonwealth with any written pleadings in the claim, litigation, or other proceeding;(c) upon receipt of notification ofsuch claim, litigation, or other proceeding defined by the Covered Conduct released herein, and at the request of the Releasee, the Commonwealth will cooperate with the Releasee to notify the appropriate Court or agency ofthis Agreement and the Agreed Judgment and will agree to join in Releasees) motion to dismiss such claims, 16, The Commonwealth represents and warrants as a material term of the settlement that the foregoing payment provisions comport with Kentucky law, including but not limited to KRS 48.005. 17, In the event that the payments set forth in Paragraph 13 are found to be invalid by a Court of competentjurisdiction on account ofany legal, regulatory or statutory provision, and subject to all other provisions of this Agreement,Purdue shall fully discharge any future payment obligations by making the foregoing payments on the same time schedule and in the same installment amounts to the Commonwealth ofK.entuoky to be deposited in the general fund surplus account as per KRS 48,005(4). To the extent Purdue has already made any payments pursuant to this Agreed Judgment, Purdue will not be obligated to make such payments again. V. 18, ADDMONAL PROVISIONS Within 5 business days ofthe Entry ofthe Agreed Judgment, Purdue agrees to move to dismiss its Writ appeal pending in the Kentucky Supreme Court in case number 2014SC-168, and its motion for discretionary review pending in the Kentucky Supreme Court in case number 2015-SC-342 to the extent either appeal has not previously been resolved by the appellate court in which the appeal is pending, The parties agree that this 9 2015-12-21 21:51 Floyd Circuit Judge 1606 » PIKE CO CIR CLK P 11/23 Agreement or Agreed Judgment is not contingent upon whether or not either appellate court renders its ruling during this period, and further agree that the nature or content of any potential ruling by either appellate court has no effect on the settlement toms agreed to in this Agreement or Agreed Judgment, 19. As set forth above, nothing in this Agreement or Agreed Judgment shall be deemed or construed as an admission or concession ofliability or as evidence ofany violation of any civil or criminal statute or law, ofcausation ofany injury, or of any fault, misconduct, liability or wrongdoing by any ofthe Releasees, or of the truth of any of the claims or allegations alleged in this Action, or as a waiver of any defenses thereto. The Releasors will not make any public statement stating or implying otherwise. 20. The Commonwealth served Requests for Admissions on the Defendants(the "Requests") on October 4,2007. The Requests directed to Purdue were deemed admitted by Purdue (the "Deemed Admissions") under orders by the Pike Circuit Court dated April 1,2013 and September 25,2013. The Releasors acknowledge that the Deemed Admissions do not reflect Purdue's actual responses to the Requests, and further acknowledge that Purdue's actual responses are those responses Purdue submitted on April 12, 2013. The Releasers further acknowledge that the Deemed Admissions have no effect, that they cannot be used by the Releasors for any purpose, and they cannot be used by any other person or entity against any ofthe Releasers for any purpose. The Releasors also agree that withdrawal ofthe Deemed Admissions will not prejudice them in connection with this Agreement of Agreed Judgment, Thus, the parties agree that the Deemed Admissions should be withdrawn as part of the Agreed Judgment pursuant to CR 36,02, 21, The Agreed Qualified Protective Order entered by the Court in this Action on December 10 2015-12-21 21:51 Floyd Circuit Judge 1606 » PIKE CO CIR CLK P 12/23 4,2013,shall continue to remain in full force and effect. 22. The parties and their lawyers agree that within 60 days of the date ofthis Agreement they will either return to the producing party or will completely destroy any and all paper and/or electronic documents received from the producing party, or received by virtue of any subpoena, and any copies made ofsame. The respective parties agree on that date to present to counsel for the producing parties a written certification ofcompliance with this term and description ofthe actions taken to comply. 23. The Releasors agree that they have not and will not, directly or indirectly, share or direct anyone else to share, the foregoing documents and/or any paper and/or electronic notes, memoranda or other writings that contain information about or from such documents, with any other person or entity, including any person or entity that is investigating or in litigation against Purdue or Abbott, or is contemplating or may be reasonably expected to contemplate an investigation or litigation against Purdue or Abbott, 24. The Releasors agree that none of them, with the exception of any attorney Releasor, will, directly or indirectly, confer with,assist, or share information gathered from a Releasee during the course ofinvestigating or litigating this Action with any other person or entity, including any person or entity that is investigating or in litigation against Purdue or Abbott,or is contemplating or may be reasonably expected to contemplate an investigation or litigation against•Purdue or Abbott. Notwithstanding this language, nothing contained in this Agreement is intended to violate Supreme Court Rule 3.130(5.6), which prohibits an agreement in which a restriction on the lawyer's right to practice is part of the settlement ofa client controversy, or otherwise restrict the practice oflaw ofany lawyer representing the Commonwealth in this Action in connection with 11 2015-12-21 21:51 Floyd Cirruit Judge 1606 » PIKE CO CIR CLK P 13/23 their representation ofany other client concerning claims against the Releasees related to the Covered Conduct. 25. This Agreement represents the full and complete terms of the settlement entered Into by the Commonwealth and Purduc, and shall not be amended except by further written agreement in advance of both the Commonwealth and Purdue. In any action undertaken by either the Releasers or the Releasees, no prior versions of this Agreement, and no prior versions of any of its terms, that were not entered by the Court in the Agreed Judgment, may be introduced for any purpose whatsoever. 26. The Commonwealth and Purdue agree this Agreement is a binding agreement as to the terms set forth herein, and that its terms cannot be modified without the written agreement ofthe Commonwealth and Purdue, Further, this Agreement shall survive. and remain a binding agreement between Rcleasors and Releasees without regard to the action taken by any court or other tribunal with respect to the tendered Agreed Judgment. Further,if the Piko Circuit Court does not enter the tendered Agreed Judgment in its entirety and without modification, the parties further agree as follows: (a) At Purdue's request, the parties will cooperate and use their best efforts, through appeal, writ, or other legal or equitable means, or remedies provided by the Kentucky Rules of Civil Procedure, to have the modified judgment entered by the Pike Circuit Court amended to conform to the terms of the tendered Agreed Judgment. Failing such amendment, at Purdue's request the parties will seek to have the modified Agreed Judgment vacated in whole. (b) In the event the Pike Circuit Court does not enter an Agreed Judgment, the 12 2015-12-21 21:51 Floyd Cirrwit Judge 1606 PIKE CO CIR CLK P 14/23 parties will cooperate and use their best efforts, through appeal, writ, or other legal or equitable means, or remedies provided by thc Kentucky Rules of Civil Procedure, to have the tendered Agreed Judgment entered by the Pike Circuit Court without modification, and (c) Without regard to the result ofany action under subsection(a)or(b), the parties will enforce any such modified Agreed Judgment only to the extent it is consistent with the terms ofthis Agreement. 27. This Agreement may be exceutad in counterparts, each of which shall be deemed to constitute an original counterpart hereof, and all of which shall together constitute one and the same Agreement. One or more counterparts ofthis Agreed Judgment may be delivered by facsimile or .PDF signatures, and shall be valid signatures as ofthe date thereof and shall constitute an original counterpart hereof. 28. The Attorney General of Kentucky, through the undersigned, represents and warrants as a material ternt ofthis Agreement and Agreed Judgment that he is a duly authorized and appointed representative ofthe Commonwealth of Kentucky, and has the Rill right, power, and authority to execute this Agreement and Agreed Judgment and bind all ofthe Releasers. 29. The parties represent that they have had the assistance oflegal counsel in negotiating, reviewing, and executing this Agreement and Agreed Judgment and that they appreciate and understand the legal significance of each and thc legal significance ofthe dismissal ofthis Action with prejudice, all of which has been explained to then by their attorneys. The parties represent that they are not under duress or pressure from any source,and they have executed this Agreement and the Agreed Judgment knowledgeably and freely by 13 2015-12-21 21:51 Floyd Cirrqit Judge 1606 >> PIKE CO CIR CLK P 15/23 and with the advice of their attorneys, In the event ofambiguity or otherwise, this Agreement or the Agreed Judgment shall not be construed against or in favor ofany of the parties on the grounds that its attorneys drafted any particular part of it. 30. With the exception of the Settlement Payment terms set forth in Section IV, the terms with regard to paragraphs 2 through 24 of the Consent Judgment in paragraph 12, and the terms in paragraph 26 herein, the provisions of this Agreement are severable and should any provision be found to be unenforceable by a final decision ofa court oflaw without the possibility offurther review, the balance shall nonetheless remain in full force and effect for the purposes of providing each of the parties with the rights and benefits created herein. 31. This Agreement shall become effective upon execution of this Agreement by each and every one ofthe signatories for both parties, 32. Each Party agrees to perform any further acts and to execute and deliver any further documents reasonably necessary to carry out this Agreement or Agreed Judgment. V. 33, DISMISSAL WITH PREJUDICE The parties agree upon full execution of this Agreement to sign and tender the Agreed Judgment which, among other terms, will dismiss this Action in its entirety with prejudice against all ofthe Releasees, with each party bearing full and exclusive responsibility for the costs and attorneys' fees associated with its representation, WITNESS the execution ofthis Settlement Agreement and General Release by the signatures of the parties set forth below, 14 2015-12-21 21:51 Floyd Cirririt Judge 1606 >› PIKE CO CIR CLK P 16/23 PURDUE PHARMA. L.P,; PURDUE PHARMA INC.; PURDUE PHARMACEUTICALS L.P.; THE P.P. LABORATORIES,INC, By I2// 9/1' Date Philip Stussburger Vico Prosidwit, General Counsel 15 2015-12-21 21:51 Floyd Ciu-lit Judge 1606 '.> PIKE CO CIR CLK P 17/23 THE PURDUE FREDERICK COMPANY,INC,Øla THE PURDUE FREDERICK COMPANY B: 2,44-v474_,0- i" Yr e ( r1Z Robin E Abrams, Vice President (21/10-r Date 16 2015-12-21 21:51 Ftoyd Cir-qit Judge 1600' ').> PIKE CO CIR CLK P 18/23 COMMONWEALTH OF KENTUCKY,ex rel JACK CONWAY,ATTORNEY GENERAL JACK CONWAY ATTORNEY GENERAL COMMONWEALTH OF KENTUCKY By; Mitchel T.Denham Assistant Deputy Attorney General Commonwealth ofKentucky Date 17 EXHIBIT 2 . • 401.0.4tila iouo » PIKE CO CIR CLK P 2/5 TENDERED COMMONWEALTH OF KENTUCKY PIKE CIRCUIT COURT DIVISION II CIVIL ACTION NO.07-CI-01303 COMMONWEALTH OF KENTUCKY,ex rel, JACK CONWAY,ATTORNEY GENERAL DE 2 2015 D PLAINTIFF v, PURDUE PIJARMA L.P., PURDUE PHARMA,INC., THE PURDUE FREDERICK COMPANY,INC., d/b/a THE PURDUE FREDERICK COMPANY, PURDUE PHARMACEUTICALS,L.P., THE P.F. LABORATORIES,INC., ABBOTT LABORATORIES,and ABBOTT LABORATORIES,INC. DEFENDANTS AGREED JUDGMENT AND STIPULATION OF DISMISAL'VVIT_H_PRFAUDICE Plaintiff, Commonwealth of Kentucky, acting by and through Attorney General Jack Conway ("the Commonwealth"),and Defendants Purdue Altar= L,P., Purdue Pharma, Inc., Purdue Frederick Company,Inc. ci/b/tt The Purdue Frederick Company,Purdue The Pharmaceuticals L,P,, The P.F. Laboratories, Inc.(hereinafter collectively "Purdue"), have reached an agreement for the resolution of all claims the Commonwealth asserted, or could have asserted in against Purdue and Abbott Laboratories and Abbott Laboratories, Inc,(hereinafter this lawsuit collectively "Abbott"). Accordingly, the Commonwealth,Purdue and Abbott now jointly ask the Court to enter this Agreed Judgment: Having been sufficiently advised, THE COURT HEREBY FINDS,ORDERS AND ADJUDGES as follows: , This action was commenced in 2007 by the Commonwealth filing a lawsuit styled Commonwealth ofKentucky, ex rel, lack Conway, Attorney General, and Pike County, 1606 » PIKE CO CIR CLK P 3/5 Kentucky v. Purdue Pharma L.P„ et al., Civil Action No.07-C1-1303(Pike Circuit Court)(the "Action). 2. The Commonwealth and Purdue have resol ved all claims arising from the Action evidenced by this Agreed Judgment and by as the document entitled thc"SETTLEME NT AGREEMENT AND GENERAL RELEASE" (the "Agreement"),attached hereto. 3, The Agreement is incorporated herein by refer ence for all purposes as iffully set forth herein, 4. The Commonwealth and Purdue are hereby orde red and required to comply with all obligations in the Agreement. The terms ofthis Agreed Judgment shall be governed by the laws ofthe Commonwealth of Kentucky, This Cour t retains jurisdiction of this Judgment and the Parties hereto for the purpose 5. ofenforcing this judgment. By entry ofthis Agreed Judgment, this Action is dismissed in its entirety with prejudice as against all ofthe Defendants as set forth in the Agre ement. 6, All parties shall bear their own costs and attorneys' 7, Based on the agreement ofthe parties in paragrap fees, h 20 of the Agreement, thc Requests for Admission to Purdue that wore deemed admitted by Purdue under orders by the Pike Circuit Court dated April 1,2013 and September 25,2013 , are hereby withdrawn pursuant to CR 36.02, and Purdue's April 12,2013 resp onses arc accepted In the record as the proper responses to the Commonwealth's October 4,2007 8, Upon receipt ofthe settlement payments, the Attorney Requests for Admission. General shall direct the payment in a manner consistent with the terms of this Agreed Judg ment. Apart from payment of attorneys' fees and expenses and keeping the reasonable cost oflitigation pursuant to KRS 48.005, any bands shall be placed in a restricted fund within the Commonwealth of •• • •••••1•••• *or r %I I ukAuVVI 1606 » PIKE CO CIR CLK P 4/5 Kentucky for the General Assembly to appropriate for the use of public health initiatives, educational or public safety campaigns, reim bursement or financing of health care services and infrastructure related to addiction prevention and treatment. SO ORDERED,ADJUDGED AND DECREED this day of December,2015: Hvno able ohnny a anis g by Designation in the County Circuit Court e. lee r vyu 1 i'CU 1 I uage 1606 » PIKE CO CIR CLK P 5/5 HAVING SEEN AND AGREED,SO STIPULATED AND ACKNOWLEDGED THIS th DAY OF DECEMBER,2015, For the Commonwealth ofiCentueicy: tchel Denham For Daniel E. Danford For the Abbott Wm:tants: Susan I. Pope P.V.g. 4 -Poo (0-114. p - EXHIBIT3 COMMONWEALTH OF KENTUCKY OFFICE OF THE ATTORNEY GENERAL ANDY BESHEAR ATTORNEY GENERAL February 18, 2016 CAPITOL BUILDING, SUITE 118 700 CAPITAL AVENUE FRANKFORT, KENTUCKY 40601 (502) 696-5300 FAX: (502) 564-2894 SENT' VIA U.S. MAIL David Armstrong Senior Enterprise Reporter STAT 135 Morrissey Boulevard Boston, MA 02125 Re: Open Records Request Received on February 15, 2016 Dear Mr. Armstrong: This letter concerns your request for "... a copy of the deposition of Richard Sackler taken as part of the attorney general's lawsuit against Purdue Pharma LP (Civil Action No. 07C1-01303, Pike Circuit Court)." The Office of the Attorney General represented the Commonwealth of Kentucky in the litigation of Commonwealth of'Kentucky v, Purdue Pharma L.P., et al., Pike County Circuit Court Civil Action No. 07-CI-01303. On December 22, 2015, the Pike County Circuit Court entered an Agreed Judgment and Stipulation of Dismissal with Prejudice ("Judgment") that dismissed the action as against all of the defendants as set forth in a Settlement Agreement and General Release ("Settlement Agreement"). A copy of each the Judgment and the Settlement Agreement is enclosed herein. In the Judgment, the Court specifically incorporates the Settlement Agreement by reference in the Judgment as if fully set forth in the Judgment. Further, the Court retains jurisdiction of the Judgment and the parties to the action for the purpose of enforcing the Judgment. The Judgment mandates that the Commonwealth of Kentucky and the Purdue Pharma defendants comply with all obligations in the Settlement Agreement, and the laws of the Commonwealth of Kentucky shall govern the terms of the Judgment. Under the terms of the Court's Judgment and the Settlement Agreement that it incorporates by reference, the Office of the Attorney General is prohibited from disclosing or producing documents or information produced in discovery in the litigation. As a result of the entry of orders of the Pike County Circuit Court, a court of competent jurisdiction, the documents you request are exempt from disclosure. See 12-ORD-219 (citing OAG 89-22, OAG 066) ORD ,and W 91-121,94-ORD-139,01-ORD-9AN'tOUAL CMPLOYER M/F/D I UNITY L/P-POR Thus, the Court ordered that,"The parties and their lawyers agree that within 60 days of the date of this Agreement they will either return to the producing party or will completely destroy any and all paper and/or electronic documents received from the producing party, or received by virtue of any subpoena, and any copies made of same." The Court further ordered as follows: The Releasors agree that they have not and will not, directly or indirectly, share or direct anyone else to share, the foregoing documents and/or any paper and/or electronic notes, memoranda or other writings that contain information about or from such documents, with any other person or entity, including any person or entity that is investigating or in litigation against Purdue or Abbott, or is contemplating or may be reasonably expected to contemplate an investigation or litigation against Purdue or Abbott, The Settlement Agreement defines the term "Releasors" as: ", the Commonwealth, Jack Conway, Attorney General, and his successors, the named Plaintiff in the action, along with any and all people purporting to act on behalf of the Commonwealth of Kentucky in an official capacity as a representative of the Commonwealth, including the Commonwealth's officials, officers, employees, agents, attorneys, legal representatives, and any and all of its political subdivisions. Releasors shall further refer to any and all of the Commonwealth's counties, cabinets, administrative bodies, boards, bureaus, officers, agencies, divisions, departments, government bodies, and commissions; and any predecessors, successors, heirs, executors, trustees, administrators, and assigns of the foregoing." In addition, the Court bars the "Releasors" from sharing information gathered from a "Releasee" during the course investigating or litigating the action with any other person or entity. The term "Releasees" is defined in 1.D. of the Settlement Agreement. The definition includes any party the Commonwealth received documents or information from in the litigation, including information gained through depositions. Furthermore, the Pike County Circuit Court orders that the Agreed Qualified Protective Order that the Pike Circuit Court entered on December• 4, 2013, shall continue and remain in full force and effect. The Agreed Qualified Protective Order prohibits the disclosure of documents designated as "Confidential," "Highly Confidential," or which contain "Confidential Health Information." The terms and conditions of the Agreed Qualified Protective Order govern the production and handling of documents, answers or responses to interrogatories, responses to requests for admissions, depositions, pleadings, exhibits and other discovery, and all other documents, data or information the parties or any third party exchanged in response to discovery requests or• subpoenas or• deemed produced, By maintaining the full force and effect of the Agreed Qualified Protective Order, the Judgment of the Pike County Circuit Court prohibits the disclosure of documents that contain 2 information that is confidential, highly confidential, or contain confidential health information. Pursuant to that Order, the parties filed numerous motions and exhibits with the Court under seal, The Commonwealth filed multiple motions under seal that referenced and quoted portions of the deposition of Richard Sackler. Further, the Purdue defendants designated many portions of the deposition as "Confidential." Thus, the release of the deposition referenced and quoted in motions filed under seal, would violate the orders of the Pike County Circuit Court and subject the Office of the Attorney General to potential sanctions. With the exception of any pleading filed under seal, the pleadings filed in the litigation are publicly-available at the Pike County Circuit Court, which maintains the Court record in the litigation. Therefore, the entry of the orders of the Pike County Circuit Court, a court of competent jurisdiction — the Judgment and the Settlement Agreement it incorporates, and the Agreed Qualified Protective Order that remains in full force and effect — removes all records within their purview and the parties bound by those orders from application of the Kentucky Open Records Act, See 12-ORD-219 (citing OAG 89-22, OAG 91-121, 94-ORD-139, 01-OR.D-95, and 05ORD-066). The Office of the Attorney General is bound by and must adhere to the orders of the Pike County Circuit Court in deference to the judicial process. See 05-ORD-066, 12-ORD 219, If the Office of the Attorney General, or any of the individuals and entities under the definition of"Releasors" in the Settlement Agreement, were to disclose any document that falls under the Court's orders, it would subject itself to potential sanctions. This office takes it obligation to comply with the Court orders seriously, and cannot risk any potential violation of those orders, inadvertently or otherwise. See 07-ORD-110 (reaffirming that where a document is sealed by the order of a court, the question of whether the document is subject to public inspection m.ust be raised in the judicial system). In your request, you reference the case of Lawson v. Office ofAttorney Gen., 415 S.W.3d 59(Ky. 2013), where the appellant sought to have the Franklin Circuit Court enjoin the Office of the Attorney General from releasing a proffer of information that he had made 26 years earlier. The circumstances of Lawson stand in stark contrast to those present in this case. Unlike in this case, a court had not entered orders barring the disclosure of documents in Lawson, With respect. to your specific request, the Office of the Attorney General does not raise the exemptions to the Open Records Act that Lawson raised, KRS 61.878(1)(a) and KRS 61.878(1)(h). Rather, the orders of the Pike County Circuit Court prohibit the Office of the Attorney General from releasing documents in the litigation, and a violation of those orders would subject the office to potential sanctions of the Court. As mentioned above, with the exception of any pleadings filed under seal, the pleadings filed in the litigation are publicly-available at the Pike County Circuit Court, which maintains the Court record in the litigation. Access to any pleading filed under seal, and the documents referenced by pleadings filed under seal, may only be gained through an order of the Pike County Circuit Court. The Commonwealth, which is bound by the orders of the Pike County 3 Circuit Court, including those referenced herein, will abide by any order of the Pike County Circuit Court that requires the disclosure of a specific document, If you wish to appeal this decision, you may do so by filing a complaint with the Attorney General's Office, Civil Division, pursuant to K.RS 61.880(2), or by filing an original civil action in the Franklin County Circuit Court under KRS 61.882. If you first appeal to the Attorney General but are dissatisfied with the Attorney General's decision, you may further appeal to the circuit court pursuant to KRS 61,880(5). Sincerely, ANDY BES ATTOR► lk ayo . Attorney General AP stant Office of the Attorney General 700 Capital Ave., Suite 118 Frank-fort, KY 40601 (502) 696-5300 Encl. 4 COMMONWEALTH OF KENTUCKY OFFICE OF THE ATTORNEY GENERAL ANDY BESHEAR ATTORNEY GENERAL February 18, 2016 CAPITOL BUILDING, SUITE 118 700 CAPITAL AVENUE FRANKFORT, KENTUCKY 40601 (502) 696-5300 FAX: (502) 564-2894 SENT VIA -U.S. MAIL David Armstrong Senior Enterprise Reporter STAT 135 Morrissey Boulevard Boston, MA 02125 Re: Supplemental Response to Open Records Request Received on February 15, 2016 Dear Mr. Armstrong: This letter serves as a supplemental response of the Office of the Attorney General to your request for "... a copy of the deposition of Richard Sackler taken as part of the attorney general's lawsuit against Purdue Pharma LP (Civil Action No. 07-CI-01303, Pike Circuit Court)." For the purpose of clarification, the deposition of Richard Sackler was filed under seal with the Pike County Circuit Court during the course ofthe litigation of Commonwealth of Kentucky v. Purdue Pharma LP., et al., Pike County Circuit Court Civil Action No. 07-CI01303. Access to any pleading filed under seal, and the documents referenced by pleadings filed under seal, may only be gained through an order of the Pike County Circuit Court. The entire response of the Office of the Attorney General is incorporated by reference herein. If you wish to appeal this decision, you may do so by filing a complaint with the Attorney General's Office, Civil Division, pursuant to KRS 61.880(2), or by filing an original civil action in the Franklin County Circuit Court under KRS 61.882. If you first appeal to the Attorney General but are dissatisfied with the Attorney General's decision, you may further appeal to the circuit court pursuant to KRS 61.880(5). nc .rel --S. ra 'is Mayo Assistant Attorney General Office of the Attorney General 700 Capital Ave., Suite 118 Frankfort, KY 40601 AN EQUAL OPPORTUNITY EMPLOYER M/F/D COMMONWEALTH OF KENTUCKY PIKE CIRCUIT COURT DIVISION II CIVIL ACTION NO. 07-CI-01303 PLAINTIFF COMMONWEALTH OF KENTUCKY,ex rel. JACK CONWAY, ATTORNEY GENERAL v. DEFENDANTS PURDUE',PHARMA,L.P., et al ORDER Upon motion of Boston Globe Life Sciences Media, LLC, d/b/a STAT to intervene in this case for the purpose of moving to unseal the Richard Sackler deposition transcript and the other motions, exhibits and material in the court record, and the Court being otherwise sufficiently advised, IT IS HEREBY ORDERED that the motion is GRANTED. STAT is hereby permitted to intervene as a party in this action for the purpose of asserting its and the public's right of access to court records in this case. IT IS FURTHER ORDERED that the Richard Sackler deposition transcript and the other motions, exhibits and material in the court record of this case are hereby UNSEALED and the clerk is directed to make the records immediately available for public inspection. PIKE CIRCUIT JUDGE Date: 19 Tendered by, Jo L. Heise aker Jeremy S. Rogers DINSMORE & SHOHL LLP 101 S. Fifth Street 2500 National City Tower Louisville, KY 40202 (502) 540-2300(phone) (502) 585-2207 (fax) Counselfor STAT 20